Ex Parte Henke et alDownload PDFPatent Trial and Appeal BoardFeb 9, 201512375556 (P.T.A.B. Feb. 9, 2015) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte STEFAN HENKE and PEITZ HOLGER ____________________ Appeal 2012-010246 Application 12/375,556 Technology Center 3700 ____________________ Before: JOHN C. KERINS, JAMES P. CALVE, and LYNNE H. BROWNE, Administrative Patent Judges. CALVE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134 from the final rejection of claims 1–11. App. Br. 1–2. Claims 12 and 13 are withdrawn. Id. at 1. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. Appeal 2012-010246 Application 12/375,556 2 CLAIMED SUBJECT MATTER Claims 1, the sole independent claim on appeal, is reproduced below. 1. A pack comprising (a) a resealable container comprising inside wall(s) embedded at least over part of the wall(s), with at least one channel former and at least one absorbent, and (b) at least one blister pack containing one or more solid pharmaceutical administration forms, where the blister pack(s) is (are) contained in the container. REJECTIONS Claims 1–4 and 11 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Brozell (US 6,173,838 B1; iss. Jan. 16, 2001) and Hekal (US 5,911,937, iss. June 15, 1999). Claims 5 and 6 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Brozell, Hekal, and Blum (US 2005/0077202 A1; pub. Apr. 14, 2005). Claims 7–10 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Brozell, Hekal, and Doublet (US 2006/0065670 A1; pub. Mar. 30, 2006). Claims 1–11 are rejected on the grounds of nonstatutory obviousness- type double patenting over claims 1–6 of co-pending application 12/523,421. ANALYSIS Claims 1–4 and 11 as unpatentable over Brozell and Hekal The Examiner found that Brozell discloses a pack, as claimed, except for inside walls embedded with at least one channel former and at least one absorbent. Ans. 5. The Examiner found that Hekal discloses these features. Id. The Examiner determined that it would have been obvious to modify Appeal 2012-010246 Application 12/375,556 3 Brozell so the interior wall of Brozell’s container has channel formers and an absorbent element of Hekal to provide a moisture-reduced environment, “since edible items are known to release moisture and would cause the item to degrade so providing an absorbent element into the walls of a container would provide a moisture reduced environment, as taught by Hekal.” Id. The Examiner found that Hekal discloses that it was known to incorporate desiccant into the material/wall of a container to establish a dry environment for items contained within a container including electronics, food items, and medications, and moisture may be released from such items that have been placed in containers or sealed in packaging wrap for shipping and/or storage. Id. at 12 (citing Hekal, col. 1, ll. 42–46 and col. 1, l. 66 to col. 2, l. 1). Appellants argue that Hekal discloses that polymers with entrained desiccating agents may be used in containers that store medication because moisture-bearing air is introduced into the container when the container is opened to access the unpackaged medicine. App. Br. 3. Appellants assert that Hekal does not disclose placing blister packs with solid pharmaceutical forms in the container. Id. Appellants further argue that contamination of medication with moisture from repeated opening and closing of a container is not a significant risk if the medication is sealed in a blister package, which acts as a moisture barrier, so that a skilled artisan would have considered it redundant and unnecessary to use a container, as described in Hekal, if the moisture sensitive medication already is sealed in the blister pack of Brozell. Id. at 4. Appellants contend that they discovered unexpectedly that the stability of moisture sensitive medication that is sealed in a blister pack can be improved dramatically if the blister packs are stored in a container having the features of the present invention. Id. (citing Spec. at 18 (Example 1)). Appeal 2012-010246 Application 12/375,556 4 The Examiner has not established, by evidence or technical reasoning, a sufficient factual basis to reasonably support the conclusion that a skilled artisan would have had a reason to modify the interior wall of Brozell’s container to include channel formers and an absorbent element, as disclosed in Hekal, to provide a moisture reduced environment. The Examiner’s reason to do so, i.e., because “edible items are known to release moisture” and “cause the item to degrade” lacks rational underpinning because Brozell relates to blister packs for medication, rather than food packaging for food. Brozell discloses an improved medication compact that contains a blister card therein without the blister card disengaging from the compact when the compact container is opened. Brozell, col. 1, ll. 27–34; Fig. 2. Brozell’s medication compact is formed in a single piece from a suitable thermoplastic material that includes a child-resistant opening. Id. at 1:37–51. Although Appellants disclose that blister packs are insufficient to block ingress of outside moisture, as the Examiner noted (see Ans. 12; Spec. 2, ll. 14–15), Appellants disclose that the prior art addressed this problem by using different materials, to include metal foils, to make blister packs, and by including desiccant within a blister package, for example, in a cavity that is connected to a plurality of tablet cavities in the blister pack. Spec. 2–4. Recognizing problems with this latter approach of consumers ingesting desiccant stored in cavities in blister packs and desiccant losing its ability to absorb moisture after a blister pack is opened to expose desiccant in the blister pack to outside moisture (Spec. 3–4), Appellants placed blister packs into a container in which desiccant/absorbent is stored in a channel formed in the container. Appellants disclose an example in which tablets with moisture-sensitive probiotic bacteria do not undergo measurable degradation Appeal 2012-010246 Application 12/375,556 5 when packaged in a blister pack and stored in a container with an absorbent embedded in the inner wall (Spec. 17–18; Table 1) and contend that this example demonstrates dramatically improved and unexpected results (App. Br. 4). The Examiner has not addressed these results or taken this evidence into consideration in forming a determination of obviousness. Hekal discloses that moisture may be released from unpackaged items that are placed in containers or sealed in packaging wrap, but Hekal solves this problem by placing desiccant inside the container, package, or bag with the unpackaged product to eliminate released moisture released within these sealed containers, packages, and bags. See Hekal, col. 1, ll. 10–22; col. 1, l. 66 to col. 2, l. 44; Figs. 1–8. The Examiner has not identified any disclosure in Hekal of placing a sealed package or blister pack into a container that has desiccant embedded therein, or any reason to use Hekal’s container this way. Accordingly, we do not sustain the rejection of claims 1–4 and 11. Claims 5 and 6 as unpatentable over Brozell, Hekal, and Blum The Examiner relies on Blum to disclose PVC and other materials for use in blister pack cavities cover sheets, or films, as recited in claims 5 and 6, and not to overcome any deficiencies of Brozell and Hekal as to claim 1. App. Br. 5. Accordingly, we do not sustain the rejection of claims 5 and 6 as unpatentable over Brozell, Hekal, and Blum. Claims 7–10 as unpatentable over Brozell, Hekal, and Doublet The Examiner relies on Doublet to teach holes and microperforations in a blister pack cavity, as recited in claims 7–10, and not to overcome any deficiencies of Brozell and Hekal as to claim 1. App. Br. 5. Accordingly, we do not sustain the rejection of claims 7–10 as unpatentable over Brozell, Hekal, and Doublet. Appeal 2012-010246 Application 12/375,556 6 Claims 1–11 for obviousness-type double patenting The Examiner rejected claims 1–11 for obviousness-type double patenting over claims 1–6 of co-pending Application No. 12/523,421. Ans. 10. Application No. 12/523,421 was abandoned on October 23, 2013. As such, we do not sustain the rejection of claims 1–11. DECISION We REVERSE the rejections of claims 1–11. REVERSED Klh Copy with citationCopy as parenthetical citation